Sales and Delivery Conditions
The following sales and delivery conditions are applicable to all delivery and service contracts affected by us, unless otherwise agreed upon on an individual basis. Legal provisions are also applicable.
Deviating general terms and conditions of the purchaser are applicable only if we explicitly confirm their validity in individual cases.
Our offers are always subject to change. Orders, contract conclusions and other agreements shall be binding, only after our written confirmation. Contractual conditions in our order confirmations, which the purchaser does not expressly contradict, shall be considered as accepted.
We reserve the right to accept and complete orders, depending on the receipt of the advance payment of the purchase price from the purchaser, or to charge the purchase price cash on delivery. Corresponding terms of payment have been included in our order confirmation and shall become legally binding on acceptance by the purchaser. The purchaser however, reserves the right to withdraw from the order due to these terms of payment within a week after the receipt.
If, after dispatching the order confirmation, we come to know that owing to the financial condition of the purchaser, the likelihood of him fulfilling his payment obligations against us partly or completely seems doubtful, we have the right to make the delivery, subject to the advance payment of the purchase price, or to charge the purchase price cash on delivery, and to withdraw from the contract on account of non-payment.
2. Delivery dates, scope of delivery and delay in delivery
If the ordered or sold goods are not sent or delivered on the agreed deadline for reasons that we are not responsible for, then the deadline shall be extended accordingly. This is also applicable in similar circumstances for our pre-suppliers and/or material suppliers. We shall immediately inform the purchaser about the delay and the rescheduled date of delivery.
Part deliveries shall be permissible within a reasonable extent.
An excess or short delivery of up to 10% is permissible wherein the actually delivery quantity is invoiced. Such a short delivery does not allow the purchaser any claims against non-fulfilment, delay or other legal aspects.
If we fail to meet an agreed deadline, this does not relieve the purchaser of his duty of providing us with an appropriately re-scheduled deadline to render the service along with the declaration that he shall reject the delivery after this re-scheduled deadline if he wishes to withdraw from the contract or demand compensation for non-fulfilment.
We shall not be responsible for a delay and the deadlines shall be appropriately extended if there is a delay on the part of the purchaser in rendering the return services, fulfilling the obligation to co-operate and/or in making the deliveries that are incumbent upon him.
3. Passing of risk
The risk of the sold goods shall be passed on delivery. If we send the goods on the request of the purchaser, the risk shall be passed to him when the goods are handed over to a forwarding agent or a carrier and not later than the time when the goods are taken out from our warehouse. The goods shall be insured on request and at the cost of the purchaser.
We are authorised to determine the type and manner of delivery and especially the delivery route and the mode of transport, unless otherwise agreed upon explicitly.
If the purchaser does not collect the goods on the date of the delivery or if the delivery is delayed on account of reasons that he is responsible for or due to any other reasons, then we shall store the goods at the risk and cost of the purchaser. In such an event, our notification of our readiness to dispatch the goods is considered to be the same as the actual dispatch of goods.
Unless otherwise specified in the contractual agreement, we shall invoice the packaging separately which shall include the packaging of individual goods as well as the complete packaging.
Our prices exclude the currently applicable VAT.
Unless otherwise agreed upon, our invoices should be paid within 14 days from the date of invoice with 2% discount or within 30 days from the date of invoice with no discount; deductions of any other kind are excluded.
We shall accept bills of exchange as payment only in case of a special agreement to that effect. Non-discountable bills of exchange shall not be accepted.
Bills of exchange and cheques shall be accepted only on the condition of a final credit. The purchaser shall bear all costs and expenses of the bills of exchange discount as well as the costs for collection of claims on bills of exchange and cheques.
Our travellers and other representatives are authorised to approve of any means of payment or compensation only if they are authorised in writing to collect payment. The purchaser must then acknowledge their authority for collection of payment or compensation.
If the purchaser delays the payment, we have the right to demand payment of default interest to the extent of the overdraft payable by us on account of outstanding fees to the legally due amount in all cases. We reserve the right to assert any further claims for damages caused by the delay.
The purchaser is entitled to assert counterclaims and retention rights only if such counterclaims have been legally defined or have been expressly accepted by us.
7. Reservation of proprietary rights
We retain ownership of the delivered goods until the complete payment of the entire purchase price and all invoice amounts that are a result of the business relationship and are pending at the time of delivery and in case of bills of exchange, cheques or other payment means, until their final credit. The same is applicable to our ex-post facto payment claims resulting from other deliveries and services connected to a previous delivery, provided the previous delivery has not been paid for, either completely or partly, at the time of these deliveries or services. This is also applicable if individual or total charges payable by us have been included in a current invoice and the balance is added and accepted.
The purchaser is authorised to resell the goods in the course of normal business. However, he shall cede all receivables resulting from the resale of these goods to his purchasers or a third party to us, regardless of whether the goods delivered by us were resold without treatment or processing or after it. The purchaser shall remain entitled to these receivables even after the ceding. This shall not affect our entitlement to collect receivables.
We undertake to refrain from collecting such receivables provided the purchaser fulfils his payment obligations.
We have the right to ask the purchaser to disclose the assigned receivables and the relevant debtors to us, to provide all details required to enable the collection as well as the relevant documents and to notify the debtors of this ceding. If the goods are resold in conjunction with another party that is not included in our scope of ownership, then the receivables of the purchaser against his customer amounting to the delivery price agreed upon between the purchaser and us is applicable. We are under obligation to release the securities to which we are entitled if their value is 20% or more of the value of the receivables to be secured, provided they are yet to be settled.
Should the purchaser breach the contract, especially by falling into arrears with payments, we shall be entitled to demand repossession of the delivered goods without having to withdraw from the contract, unless mandatory statutory regulations to the contrary exist. In the event of the seizure of goods, withdrawal from the contract is applicable only on written acknowledgment of the same.
In the event of seizures or other interferences, the purchaser is obligated to immediately notify a third party and direct the relevant authorised persons and enforcement officers concerning the same to our property.
8. Guarantee and notification of defects
We shall assume liability for any defects in the delivered goods, with the exception of any additional claims.
On receipt of the goods, the purchaser must immediately check them for the quantity, quality and defects, if any. The purchaser must promptly notify us in case of a defect in the quality goods as regards the assured properties and/or if the quantity of the goods differs from the ordered quantity. Visible defects must be notified in writing within a week. Defects which were not recognisable at the time of receipt of goods must be promptly notified in writing at the latest within the legally stipulated warranty period after they have been identified, except when § 444 BGB [Bürgerliches Gesetzbuch - German Civil Code] and/or §377, Para 5 of the HGB [Handelsgesetzbuch - Code of Commercial Law] is applicable.
Taking into account the aforementioned considerations, we commit to rectify the defect or deliver a faultless replacement or in case of inadequate properties, excluding other additional warranty claims of the purchaser, and to render supplementary services at our own discretion. Using equitable discretion, the purchaser must grant us sufficient time and provide the opportunity to eliminate the defects and should send us the defective goods, otherwise the warranty claim cannot be fulfilled.
The purchaser is not entitled to claim compensation in case of insignificant defects as regards quality, design and/or colour, unless otherwise specified. In all other events, the regulations in § 439, Para 3 BGB shall be applicable in case of delay in rendering additional services.
The warranty period (statutory period of limitation) is two years and starts with the dispatch of goods. We shall be liable for replacements and repairs to the extent defined for the original goods. The warranty period (statutory period of limitation) is one year in case of replacements and 6 months in case of repairs. However, the warranty period of such deliveries end, when the warranty period of the original delivery goods expires.
If the repairs or the replacements are unsatisfactory in spite of granting appropriate grace days, the purchaser is entitled to demand annulment of the contract with reference to the defective delivery goods.
9. Custom-made products and models
Models that we manufacture for creating a new article for the purchaser or in conjunction with the manufacture of special series for the purchaser (modifying the catalogue items, customised decors, etc.) shall be our property, even if they are manufactured on request of the purchaser. If they are transferred to the purchaser, they must be returned to us immediately after the final design of the relevant article has been determined. If, for some reason, an order is not placed or executed, then the models must be returned to us at the latest within 2 weeks after we or the purchaser has admitted to not being able to complete the order.
We reserve all rights, especially copyright as well as usage rights, of our models.
10. Liability limitation
Compensation claims against us and/or our subcontractors or vicarious agents on account of not rendering the service, delay, positive breach of contract, failure in completing the contract, prohibited activities as well as other legal reasons are excluded, unless they are on account of deliberate intent or gross negligence.
We are liable only for direct damages. As far as legally permissible, the liability for claims that do not fall within the scope of the aforementioned reasons, especially indirect and consequential damages as well as loss of profit, are excluded. In case of gross negligence on our part, the claims of the purchaser, if any, shall come under the statute of limitation one year after the transfer of risk to him.
11. Place of fulfilment and jurisdiction
The place of fulfilment of our services as well as those of the purchaser, especially for payments of the purchaser including actions on cheques and bills of exchange, shall be Erbach.
All situations between the parties, considering that the purchaser is a registered merchant in the commercial register or is a legal entity under a public law or a special fund under public law, shall come under the jurisdiction of either Michelstadt or Frankfurt am Main.
12. Applicable law, effectiveness clause, data usage
The law of the Federal Republic of Germany shall govern the relations between parties with the exception of the Hague law on sales.
Should individual regulations of these conditions or the delivery transaction become ineffective, this shall not affect the effectiveness of the remaining regulations and delivery transaction.
The concerned parties must then replace the ineffective regulation with an effective one, which fulfils the business objective of the ineffective regulation as much as possible.
We are entitled to process the obtained data about or relevant to the business relationship from the purchaser within the scope of the regulations of the Federal Data Protection Act.
koziol »ideas for friends GmbH . District Court of Darmstadt HRB 70326
Managers: Stephan Koziol, Daniel Koziol, Thorsten Muntermann